Three years ago, the U.S. Sixth Circuit Court of Appeals ruled that applicators must seek National Pollutant Discharge Elimination System permits for spraying pesticides over or near water.
The ruling was subsequently upheld by the U.S. Supreme Court, in part, pesticide manufacturing groups say, because the Environmental Protection Agency did not pursue an appeal more aggressively.
The House has passed legislation, the Reducing Regulatory Burdens Act, H.R. 872, that would negate the need for permits for pesticides register under FIFRA or the Federal Insecticide, Fungicide and Rodenticide Act.

The U.S. House of Representatives has taken the first step in freeing pesticide applicators from having to obtain NPDES permits for applications over or near water with the passage of H.R. 872, the Reducing Regulatory Burdens Act.

Now, the Senate needs to follow through by passing similar legislation that would require EPA to stop development of a permitting system that its own research shows would take more than a million hours of applicators’ time to complete annually.

That’s the message members of the Southern Crop Production Association took to their congressmen, senators and staff members during the group’s annual trek to Capitol Hill on May 12. More than 30 crop protection and seed company representatives traveled to Washington for the event.

EPA began working on a permitting system after the 6th U.S. Circuit Court of Appeals overturned the agency’s 2006 ruling that aquatic pesticide applications were exempt from the Clean Water Act’s National Pollutant Discharge Elimination System requirements.

The Court said EPA must have a new permitting system for such applications – which include spraying for mosquitoes by municipal and state abatement districts and unwanted aquatic vegetation by parks departments – by April 1. EPA subsequently sought and received an extension of the deadline until Oct. 31.

Currently, all pesticides must undergo extensive testing for safety in a variety of application environments under the Federal Insecticide, Fungicide and Rodenticide Act. The pesticide label spells out conditions in which pesticides cannot be sprayed.

“Pesticide permits under the Clean Water Act do not provide further protection of water quality,” said Ed Duskin, executive director of the SCPA who coordinated the visits that included 69 members of Congress and their staffs. “The permits only burden state regulators and applicators with tremendous cost and mountains of paperwork.”

Duskin says that Congress omitted pesticides when it enacted the Clean Water Act NPDES permitting program in 1972 and never looked beyond FIFRA for the regulation of pesticides.

By its calculations, the EPA believes the new permitting system will cover about 1.5 million pesticide applications per year. It anticipates the potential number of permit applicants at 365,000 and estimates the annual time burden at 1,033,713 hours for permittees and 45,809 hours for the 45 delegated permit authorities in the states.

H.R. 872 would amend FIFRA and the Clean Water Act to say that no permit is required for the labeled use of any registered pesticide. It would also instruct EPA and the courts that Congress did not intend other environmental laws to overtake FIFRA.

The bill passed the House on March 31 by a vote of 292-130 with all House Republicans and 57 Democrats voting in its favor. Despite the overwhelming approval in the House, it faces an uncertain future in the Senate.

“Why hasn’t the Senate taken action already?” asked Rep. Austin Scott, a new member of the House Agriculture Committee from Georgia’s Eight Congressional District. “My recollection is that that bill passed unanimously out of the committee. Every Democrat and every Republican voted for it.

“Lisa Jackson (EPA administrator) said it was EPA’s duty to keep the farmer on the farm,” Scott said in remarks to the SCPA members following lunch on Capitol Hill. “That kind of took me back because most of the people I know in agriculture think that you either have the EPA on the farm or the farmer on the farm but not both.”

Sen. Pat Roberts, R-Kan., the ranking member of the Senate Committee on Agriculture, Nutrition and Forestry, has introduced a bill, S-718, which would eliminate the CWA permit requirement for pesticides applied in compliance with FIFRA.

So far, Roberts’ bill has only attracted Republican co-sponsors. Sen. Debbie Stabenow, D-Mich., chairman of the Senate Agriculture Committee, has said she is not ready to support the Roberts’ bill because she is waiting on a response from EPA on questions raised during a meeting between several senators and EPA Administrator Jackson and Agriculture Secretary Tom Vilsack.